BVA9503897
DOCKET NO. 93-06 298 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to waiver of recovery of an overpayment of Chapter
106 educational assistance benefits.
ATTORNEY FOR THE BOARD
P. B. Werdal, Associate Counsel
INTRODUCTION
The appellant entered active duty in January 1986 and was
released from active duty in June 1986. He extended his
enlistment for a period of six years and agreed to remain a
member of the Army National Guard of Maryland and a Reserve of
the Army during that period.
This matter came before the Board of Veterans' Appeals (Board) of
the Department of Veterans Affairs (VA) on appeal from a letter
dated March 10, 1992, from the Portland, Oregon, Regional Office
(RO), informing the appellant of an overpayment of Chapter 106
educational assistance benefits. The appellant requested a
waiver of the overpayment in a document received in March 1992.
In a decision dated May 19, 1992, the Committee on Waivers and
Compromises denied that request and informed the veteran of that
decision in a letter dated May 19, 1992. A notice of
disagreement was received in June 1992. The statement of the
case was sent to the appellant in July 1992. The substantive
appeal was received in October 1992. This matter was previously
before the Board and was remanded in November 1993.
REMAND
This case was remanded so that the RO could develop and
adjudicate the issue of whether the overpayment was properly
created. The Board notes that the appellant last reported his
mailing address as Corvallis, Oregon, in October 1992; in June
1993 he reported his mailing address as Philomath, Oregon. The
notice advising him of the hearing scheduled for March 1993 was
sent to the Corvallis address (in a letter apparently incorrectly
dated March of 1992). In June 1993 the RO received an undated
letter from the appellant that contained an address in Philomath,
Oregon, and responded with a letter to that address. There is no
indication that address is incorrect. However, for some reason
the supplemental statement of the case prepared pursuant to the
Board's November 1993 remand was sent to the appellant at the
Corvallis address. The claims folder contains no subsequent
correspondence from the appellant. A letter from the Board dated
in 1994 and addressed to the Corvallis address was returned by
the Postal Service marked undeliverable.
Based on the information in the claims folder it appears the
appellant might not have received notice of the March 1993 travel
board hearing. Furthermore, it appears that he very likely did
not receive the supplemental statement of the case prepared on
remand. Although it is the appellant's responsibility to keep VA
apprised of his current address, it appears that VA erred in
sending the supplemental statement of the case to him at the
Corvallis address, as that was not the most recent address of
record.
VA has a duty to assist in the nonadversarial process of claims
adjudication. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R.
§ 3.103(a) (1994). Under the circumstances of this case,
additional development is necessary. Accordingly, this matter is
REMANDED for the following action:
1. The appellant should be afforded the
opportunity for the hearing he requested in
his substantive appeal. The communication
regarding that hearing should be sent to
the most recent address, which appears to
be the Philomath, Oregon, address,
indicated on the appellant's letter with a
stamp at the bottom that contains a
handwritten date of June 28, 1993.
2. The RO should review the question of
whether the overpayment was properly
created. If the RO's determination remains
unfavorable to the appellant, the RO should
prepare and provide the appellant with a
supplemental statement of the case
addressing the issue of creation of the
overpayment. The appellant should be
provided with the opportunity to respond to
the supplemental statement of the case
prior to return of the appeal to the Board.
The purpose of this REMAND is to assist the appellant in
developing his claim. No action is required of him until further
notice. The Board expresses no opinion, either factual or legal,
as to the ultimate determination warranted in this case pending
completion of the requested action.
G. H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).